Look­ing for hot spots in the li­a­bil­ity dan­ger zone

Only Los when An­ge­les-based sur­geons Ker­lan-Jobeat the Or­thopaedic Clinic be­gan an­a­lyz­ing their mal­prac­tice data did they dis­cover pa­tient fi­nances of­ten de­ter­mined when the group got sued.

The 2014 eval­u­a­tion of the cases also re­vealed a stun­ning dis­con­nect in pa­tient com­mu­ni­ca­tion. Pre-sur­gi­cal con­ver­sa­tions rarely cov­ered post-surgery costs, even though pa­tients of­ten got hit with bills for phys­i­cal ther­apy, spe­cial equip­ment and di­etary coun­sel­ing af­ter an or­tho­pe­dic pro­ce­dure. Those un­ex­pected ex­penses an­gered pa­tients, who did not fully un­der­stand how the ser­vices re­lated to the surgery’s out­come.

“It’s too late to have the con­ver­sa­tion af­ter the fact,” said clinic Chair­man Dr. Ralph Gam­bardella. “If the pa­tient can’t af­ford ther­apy, maybe they don’t get the best out­come. When they’re dis­ap­pointed in the re­sults, a claim is made.”

Last year, the clinic added fi­nan­cial screen­ing to sur­gi­cal as­sess­ments and be­gan work­ing col­lab­o­ra­tively with out­side spe­cial­ists. And this month it in­tro­duced a smart­phone app that sends pa­tients alerts on fol­low-up ap­point­ments and med­i­ca­tion sched­ules.

For years, physi­cian prac­tices look­ing to lower their mal­prac­tice claims failed to tackle in­ter­nal qual­ity prob­lems un­til they were hit with a huge set­tle­ment. That in­vari­ably meant they fo­cused only on those par­tic­u­lar sit­u­a­tions. But now that’s be­gin­ning to change.

Li­a­bil­ity in­sur­ers and providers are group­ing and an­a­lyz­ing all their mal­prac­tice claims in large data­bases to iden­tify what they are call­ing li­a­bil­ity dan­ger zones. “You im­me­di­ately cap­ture the at­ten­tion of doc­tors who are very in­ter­ested in know­ing their risk,” said Dr. David Troxel, med­i­cal di­rec­tor of the Doc­tors Co., a physi­cian-owned li­a­bil­ity in­surer based in Napa, Calif. “Once they know that, they be­come much more fo­cused on a prob­lem.”

The new fo­cus on li­a­bil­ity claims that don’t re­sult in pay­outs is the lat­est wrin­kle in a decade­long move­ment to re­duce the fre­quency of mal­prac­tice cases. Many states have changed tort laws to limit the abil­ity of pa­tients to sue. So-called “I’m sorry” laws in some states are en­cour­ag­ing apolo­gies, in which providers ad­mit med­i­cal mis­takes to pa­tients, by pre­vent­ing them from be­ing used in court­rooms.

The ef­forts are work­ing in terms of re­duc­ing pay­outs. Paid mal­prac­tice claims against med­i­cal doc­tors fell from 18.6 to 9.9 paid claims per 1,000 physicians be­tween 2002 and 2013, ac­cord­ing to a 2014 study in JAMA. And for the past seven years, the amount paid per claim has de­clined in in­fla­tion-ad­justed dol­lars by 1.1% a year on av­er­age. Med­i­cal mal­prac­tice pre­mi­ums col­lected by in­sur­ers have been fall­ing in re­cent years.

But mak­ing it tougher to sue or en­cour­ag­ing apolo­gies doesn’t get at the root cause of many of the law­suits, which are in­ter­nal qual­ity prob­lems. An ap­proach to mal­prac­tice that takes into ac­count all claims no mat­ter what the out­come can un­veil prob­lems in clin­i­cal prac­tice that re­main un­ad­dressed be­cause, iron­i­cally, physicians and health­care sys­tems are still afraid of be­ing sued.

De­nial has never been an ef­fec­tive strat­egy, said Rick Booth­man, chief risk of­fi­cer of the Univer­sity of Michi­gan Health Sys­tem, whose work has fo­cused on risk man­age­ment in health­care set­tings. Not only does it fail to re­duce claims, stud­ies show, but sti­fling dis­cus­sion about er­rors can have a last­ing and neg­a­tive im­pact on the qual­ity of care.

“Ev­ery­body be­moans how much they spend on med­i­cal mal­prac­tice costs, but they don’t dif­fer­en­ti­ate be­tween claims that are mer­i­to­ri­ous ver­sus those that are not,” he said. Look­ing at larger data sets can help to do that.

It’s un­der­stand­able that physicians fear med­i­cal mal­prac­tice claims. A re­cent Med­scape sur­vey of nearly 4,000 physicians found that 59% had been sued at least once dur­ing their ca­reer. A 2014 study pub­lished in JAMA In­ter­nal Medicine found that fear of friv­o­lous law­suits may be so per­va­sive it has sig­nif­i­cantly changed how doc­tors ap­proach di­ag­no­sis. Nearly a third of doc­tors prac­tice what is known as de­fen­sive medicine: order­ing un­nec­es­sary tests or pro­ce­dures to in­oc­u­late them­selves from li­a­bil­ity claims.

“Ev­ery­body be­moans how much they spend on med­i­cal mal­prac­tice costs, but they don’t dif­fer­en­ti­ate be­tween claims that are mer­i­to­ri­ous ver­sus those that are not.”

Some mal­prac­tice in­sur­ers have formed col­lab­o­ra­tions with hospi­tals and physi­cian groups to an­a­lyze their claims.

Look­ing broadly at claims filed against hospi­tals, health sys­tems and physi­cian groups of­fers a rad­i­cally dif­fer­ent ap­proach. It en­ables lead­ers to fo­cus their im­prove­ment ef­forts. It can be es­pe­cially ef­fec­tive in spe­cial­ties prone to law­suits.

The Med­scape sur­vey found that 79% of or­tho­pe­dists, 85% of ob­ste­tri­cian-gyne­col­o­gists and 83% of gen­eral sur­geons had been part of a mal­prac­tice suit, mak­ing th­ese are­nas ripe tar­gets for a data-driven ap­proach.

Some mal­prac­tice in­sur­ers have formed col­lab­o­ra­tions with hospi­tals and physi­cian groups to an­a­lyze their claims. They delve into data col­lected by the shared li­a­bil­ity in­surer and use the find­ings to in­sti­tute process changes or cre­ate best prac­tices.

Since 2010, the Doc­tors Co. has re­leased sev­eral re­ports us­ing closed claims data from law­suits filed against its more than 77,000 mem­bers, which in­clude the 21-physi­cian Ker­lan-Jobe group. The re­ports have fo­cused on spe­cial­ties such as ob­stet­rics, car­di­ol­ogy and ortho­pe­dics. The group found that more than one­fifth of 882 ob­stet­ri­cal claims that closed be­tween 2007 and 2014, and a fourth of 429 car­di­ol­ogy claims that closed be­tween 2007 and 2013, were re­lated to de­lays in treat­ment caused by poor pa­tient as­sess­ment or di­ag­no­sis er­rors.

Dr. San­deep Man­gal­murti, a car­di­ol­o­gist at the Bas­sett Med­i­cal Cen­ter in Coop­er­stown, N.Y., worked with the Doc­tors Co. to cre­ate a car­di­ol­ogy mal­prac­tice registry to track heart-re­lated law­suits na­tion­wide. They found that even when the side ef­fects of cer­tain heart drugs were well-known, pa­tients were of­ten sur­prised when they suf­fered the ef­fects and wanted to sue.

His prac­tice wants to use the find­ings to set up elec­tronic health-record warn­ings for high-risk drugs, which trig­ger in-depth dis­cus­sion with pa­tients un­der­go­ing pro­ce­dures re­quir­ing their use. “Prac­tic­ing physicians want in­for­ma­tion that iden­ti­fies li­a­bil­ity pit­falls in their day-to-day prac­tice,” he said. “If you’re aware that cer­tain sce­nar­ios are as­so­ci­ated with a higher num­ber, you’re go­ing to be more pru­dent.”

An­other anal­y­sis of more than 1,895 claims filed against or­tho­pe­dists found that more than 500 were at­trib­uted to pa­tient fac­tors, such as not ad­her­ing to the treat­ment plan or keep­ing fol­low-up ap­point­ments. Gam­bardella, who sits on the Doc­tors Co.’s or­tho­pe­dic ad­vi­sory com­mit­tee, says the re­search in­spired him to look more care­fully at the le­gal cases filed against spe­cial­ists in the Ker­lan-Jobe or­tho­pe­dic group.

They found that while the pre-surgery as­sess­ment fo­cused on is­sues such as the risks of surgery and the pa­tient’s health in­sur­ance, it failed to delve into post­surgery ex­penses that were billed by other spe­cial­ists, nu­tri­tion­ists or phys­i­cal ther­a­pists.

Mal­prac­tice case reg­istries also helped hospi­tals fo­cus on pa­tient ap­pro­pri­ate­ness in the pre-surgery as­sess­ment. The Hospi­tals In­sur­ance Co., a pro­fes­sional li­a­bil­ity in­surer based in New York City, formed a mal­prac­tice in­sur­ance col­lab­o­ra­tive with a group of hospi­tals in 2011. It found tun­nel vi­sion of­ten blurred clin­i­cians’ views to a pa­tient’s risks dur­ing the pre-sur­gi­cal as­sess­ment.

While a car­diac sur­geon might have ex­ten­sive con­ver­sa­tions with a pa­tient about his or her heart be­fore a pro­ce­dure, the car­di­ol­o­gist wasn’t fo­cused on the “other or­gan sys­tems like the lungs, liver or kid­ney. It’s not op­ti­mal care,” said Dr. David Feld­man, the in­surer’s chief med­i­cal of­fi­cer. When prob­lems oc­curred in those parts of the body af­ter surgery, pa­tients were more likely to sue.

The col­lab­o­ra­tion in­cludes Mai­monides Med­i­cal Cen­ter, and the Mount Si­nai and Mon­te­fiore health sys­tems, all in New York City. Af­ter dis­cov­er­ing 40% of the as­sess­ments that cleared pa­tients for surgery did not list pa­tients’ other chronic con­di­tions, Mon­te­fiore made fill­ing out a full pa­tient as­sess­ment a “hard stop.” “You could not go into the OR if it hadn’t been com­pleted,” said Dr. Calie San­tana, the hos­pi­tal’s as­so­ciate di­rec­tor of qual­ity.

One of the largest datasets comes from CRICO, whose Com­par­a­tive Bench­mark­ing Sys­tem con­tains more than 300,000 med­i­cal mal­prac­tice cases, or 30% of all fil­ings. A 2014 anal­y­sis found that be­tween 2008 and 2012, a fifth of the cases al­leged fail­ures in di­ag­no­sis.

A Na­tional Acad­e­mies of Sci­ences, En­gi­neer­ing and Medicine re­port es­ti­mated that about 5% of out­pa­tients are im­prop­erly di­ag­nosed each year and 10% of pa­tient deaths from med­i­cal er­rors are due to mis­di­ag­noses. The re­port called di­ag­nos­tic er­rors a “per­sis­tent blind spot” in the qual­ity-im­prove­ment move­ment and rec­om­mended changes to the le­gal en­vi­ron­ment to fa­cil­i­tate the timely iden­ti­fi­ca­tion and dis­clo­sure of di­ag­nos­tic er­rors.

The ris­ing fo­cus on use of mal­prac­tice data as an im­prove­ment tool is “nice to see, but prob­a­bly way over­due,” said the Univer­sity of Michi­gan’s Booth­man. For the past 12 years that sys­tem’s of­fice of clin­i­cal safety has pro­vided de­tailed break­downs about law­suits and pa­tient com­plaints to ev­ery depart­ment to iden­tify riskman­age­ment op­por­tu­ni­ties. It or­ga­nizes staff education events with lists of prac­ti­cal rec­om­men­da­tions about how to ame­lio­rate those risks.

“Ev­ery­thing a physi­cian does has risks, whether it’s giv­ing an an­tibi­otic or a car­diac pro­ce­dure,” he said. “The more the pa­tient can un­der­stand the dif­fi­cul­ties, the prob­lems and the chal­lenges, the less likely it is that they will end up in court.”